Citation Nr: 0613558
Decision Date: 05/10/06 Archive Date: 05/17/06
DOCKET NO. 04-03 372 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for hearing loss.
2. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The veteran served on active duty from July 1969 to February
1971.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a February 2002 rating decision of the
Regional Office (RO) that denied the veteran's claims for
service connection for hearing loss and PTSD.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
The veteran asserts that service connection is warranted for
PTSD and hearing loss. The record discloses that the
veteran's military occupational specialty was field
artilleryman and that he served in Vietnam. Among the medals
he received were the Bronze Star Medal and the Air Medal.
The Citation for the latter medal indicated that the veteran
had "actively participated in more than twenty-five aerial
missions over hostile territory in support of operations
against communist aggression."
VA outpatient treatment records reflect that the veteran was
seen at the mental hygiene clinic during 2003 and the
diagnosis was PTSD. He has not been afforded a VA
psychiatric examination following service.
With respect to his claim for service connection for hearing
loss, the Board notes that when the veteran was seen for an
audiometric evaluation in April 2003, it was concluded that
the veteran's hearing in his right ear was within normal
limits through 2,000 Hertz, with a mild sensorineural hearing
loss in very high frequencies, and that his hearing was
within normal limits in his left ear, except at 4,000 Hertz.
The report of the audiogram is not in the claims folder. A
VA audiometric examination has not been conducted since the
veteran's separation from service.
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).
This law redefined the obligations of the VA with respect to
the duty to assist and included an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits, including which
evidence, if any, the appellant is expected to obtain and
submit, and which evidence will be obtained by VA. See
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506 (U.S.
Vet. App. March 3, 2006). which held that the VCAA notice
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a service connection
claim, including the degree of disability and the effective
date of an award. In the present appeal, the appellant was
provided with notice of what type of information and evidence
was needed to substantiate his claims for service connection,
but he was not provided with notice of the type of evidence
necessary to establish a disability rating or the effective
date for the disabilities on appeal. As these questions are
involved in the present appeal, this case must be remanded
for proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b), that informs the veteran that a disability rating
and an effective date for the award of benefits will be
assigned if service connection is awarded, and also includes
an explanation as to the type of evidence that is needed to
establish both a disability rating and an effective date.
Under the circumstances of this case, the Board finds that
additional development of the record is required.
Accordingly, the case is REMANDED to the RO for action as
follows:
1. The RO should contact the veteran and
request that he furnish the names,
addresses, and dates of treatment of all
medical providers from whom he has
received treatment for hearing loss and
PTSD since his discharge from service.
After securing the necessary
authorizations for release of this
information, the RO should seek to obtain
copies of all treatment records referred
to by the veteran, and which have not
already been associated with the claims
folder.
2. The veteran should then be afforded a
VA psychiatric examination to determine
whether the veteran suffers from any
psychiatric disorder and, if so, its
nature and etiology. The examination
report should include a detailed account
of all pathology found to be present. If
there are psychiatric disorders other
than PTSD, the examiner should reconcile
the diagnoses and should specify which
symptoms are associated with each of the
disorder(s). If certain symptomatology
cannot be dissociated from one disorder
or another, it should be specified. If a
diagnosis of PTSD is appropriate, the
examiner should specify the
"stressor(s)" that serve as the basis
for the diagnosis. The examiner should
be apprised that the veteran's reported
combat-related stressors are deemed
verified by VA. The examiner should also
describe which stressor(s) the veteran
reexperiences and how he reexperiences
them. The psychiatrist should describe
how the symptoms of PTSD affect the
appellant's social and industrial
capacity, and whether the condition is
permanent in nature. The report of the
examination should include a complete
rationale for all opinions expressed.
All necessary special studies or tests
are to be accomplished. The examiner
should assign a GAF score and a
definition of the numerical code assigned
in order to comply with the requirements
of Thurber v. Brown, 5 Vet. App. 119
(1993). The claims folder must be made
available to the examiner for review in
conjunction with the examination.
3. The veteran should then be afforded a
VA audiometric examination to determine
the nature and etiology of any current
hearing loss. All necessary tests should
be performed. The examiner is requested
to provide an opinion concerning whether
it is at least as likely as not that a
current hearing loss is related to the
veteran's noise exposure in service. The
rationale for any opinion expressed
should be set forth. The claims folder
should be made available to the examiner
in conjunction with the examination.
4. The RO should send the veteran a
corrective VCAA notice under 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b), that
includes an explanation as to the
information or evidence needed to
establish a disability rating and an
effective date for the benefits sought on
appeal, as outlined by the Court in
Dingess.
5. Following completion of the above,
the RO should review the evidence and
determine whether the veteran's claim may
be granted. If any benefit sought
remains denied, the appellant and his
representative should be furnished an
appropriate supplemental statement of the
case and be provided an opportunity to
respond. The case should then be
returned to the Board for further
appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
_________________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).